No. 12-14-00148-CV
IN THE COURT OF APPEALS FOR THE
TWELFTH DISTRICT OF TEXAS AT TYLER, TEXAS
MARY LOU PETTY,
FILED IN COURT OF APPEALS
12th Con;' of Aoceals District
Appellant
v.
SANTANDER CONSUMER USA INCGAW a LL'SK.'C>i
Appellee
REPLY BRIEF OF APPELLANT, MARY LOU PETTY
From the 2nd District Court, Cherokee County, Texas,
Cause no. 2013-06-0442, Hon. Dwight Phifer, presiding.
Mary Lou Petty
744 Elizabeth Drive
Bullard TX 75757
(903) 825-7222
Appellant
ProSe
ORAL ARGUMENT IS REQUESTED
Pagei
Appellant's Reply Brief- Mary Lou Petty
IDENTITIES OF PARTIES AND COUNSEL
I. Plaintiff/Appellee:
Santander Consumer USA, Inc.
Counsel:
Aaron Z. Tobin
State Bar No. 24028045
atobin@andersontobin.com
Kendal B. Reed
Texas Bar No.
24048755
kreed(S>andersontobin.com
Anderson /Tobin PLLC.
13355 Noel Road, Suite 1900
Dallas, Texas 75240
Phone (972)789-1160
Fax: (972)789-1606
II. Defendant/Appellant:
Mary Lou Petty, Pro Se
744 Elizabeth Drive
Bullard, Texas 75757
(903) 825-7222
onegentledove(S>peoplepc.com
Appellant's Reply Brief-Mary Lou Petty Page B
TABLE OF CONTENTS
IDENTITIES OF PARTIES i
TABLE OF CONTENTS ii
TABLE OF AUTHORITIES ii
STATEMENT OF THE CASE 1
STATEMENT REGARDING ORAL ARGUMENT 2
DISCREPANCIES 3
ARGUMENTS 7
CONCLUSION 12
CERTIFICATE OF COMPLIANCE 13
CERTIFICATE OF SERVICE 13
TABLE OFSTATUES
Texas Constitution Art 1 Sec 15 and Art V Sec 10 11
Tex R Civ P. 38(a) 2, 10
Tex R. Civ P. 166a 6, 11
Tex R. App P. 9.4(e), (i) 13
Appellant's Reply Brief- Mary Lou Petty Page iii
STATEMENT OF THE CASE
On December 14, 2012, Mary Lou Petty, the Appellant/Defendant, did sign
a contract to purchase a 2005 Toyota Trundra (CR 42-43) which was financed
through Santander Consumer, USA, Inc., Plaintiff/Appellee. When she realized
that she had been deceived by a lie told by the sales man, she notified Santander
Consumer USA, Inc., the finance company on December 18, 2012 that she was
going to return the vehicle to the dealership the next day. On December 19, 2012,
she did return the vehicle and again notified Santander that the vehicle was
returned to the dealership because she did not want to do business with an
unethical business.
Just priorto the law suit being filed, she had a knee replacement surgery and
then in September, she had a knee manipulation procedure. This resulted in
intensive physical therapy, 5 days a week and an increase in taking pain
medications. Being visually impaired and taking pain medication made it
impossible for Ms. Petty to function properly. She was physically and mentally
incapacitated for several months and did not have the strength or energy to devote
to this matter. It was extremely difficult trying to read the cited sections of the
TRCP.
Appellant's Reply Brief- Mary Lou Petty Page 1
She tried diligently to obtain legal counsel, but was not successful. She tried
to obtain legal aid/assistance through different agencies but made too much to
qualify. She couldn't get a loan to pay $5,000.00 retainer fee because this vehicle
showing up on her credit score; therefore, Ms. Petty was forced to defend herself.
She admits to making some mistakes but feels some of them can be justified.
STATMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument. She does not agree with the Appellee
claims that this is a simple and straightforward summary judgment. This case had
too many discrepancies, inconsistencies and miscommunications that need to be
taken into account before determining if it is a straight forward summary judgment.
TO THE HONORABLE COURT OF APPEALS
Ms. Petty respectfully pray that the Court reverse the trial court Summary
Judgment in favor of the Appellee and remand this case to be returned to the trial
court for a trial by jury or, alternatively, give the appellant a chance to file the
necessary affidavits to oppose the appellee's claims and have a summary judgment
hearing. The Appellant was working on bringing the manager from Fenton Motors
into the suit under TRCP 38(a). She is still very interested injustice being served.
Appellant's Reply Brief - Mary Lou Petty Page 2
DISCREPANCIES
After reading through the Appellee's Brief (referred to as AB) from here on,
Mr. Reed made some comments about the motion for continuance hearing, Ms.
Petty decided to verify that there was not any reporter's record. After learning
there was a recorded record and she requested it, she decided to do a thorough
check of the clerk's records. Many discrepancies were noted.
The 1st discrepancy Mr. Reed made reference to was Ms. Petty's Motion for
Continuance (CR 56) as a hearing. If that was actually a hearing then there must
be a Reporter's Record (referred to as RR from here on) of it. She made the
request for this record and inquired as to the fee to obtain them when she filed for
the Appeal. Ms. Petty was told there wasn't any. She was disappointed but
thought it was not recorded because it was a conference call. But since Mr. Reed
referred to it as a Motion for Continuance Hearing she believed there had to be a
recording made of it; therefore she contacted the court reporter and asked if there
was a record of the March 5th 2014 Meeting. The reporter said there was and it
would cost $40.00.
There were some things the Judge said that would have been put in her brief
if she had received the (RR) at that time. This was a major Discrepancy. This led
to a more careful review of the (CR). Several other discrepancies existed.
Appellant's Reply Brief- Mary Lou Petty Page 3
The 2nd discrepancy was Index 13, CR 53, dated 2/7/14. It was a note sent to
Cynthia Navarro (Mr. Reed's Litigation Legal Assistant). This note stated that
Judge Phifer will not hear this msj by submission. She will notify Ms. Petty.
However, Ms. Petty never received this note.
The 3rd discrepancies involved CR55 and CR56. CR 55 a Letter Motion for
Dismissal and CR 56 was a Letter Motion for Continuance. Both of these letters
were mailed to the district court on Feb 26, 2014. But since Ms. Petty didn't put
2nd Floor Drawer G as part of the address, the clerk's office had not received them
as of March 3, 2014; therefore she faxed the copy of the letters into the clerk's
office. The problem with this that they were never returned to Ms. Petty. Since
Rusk is such a small town, the letters (CR 55-56) should have made it to their
office. When they did make it, they should have been an annotation made in the
clerk's record as to the date and time they were actually received the originals
letters.
The 4th discrepancy involves CR57. It is not listed on the CR Index page. It
is a fax confirmation sheet showing that 4 pages were sent from Mary Monkress,
the court coordinator to Mr. Reed. It was dated 3/4/14 and was sent at 1:25PM.
There is no annotation as to what was sent to Mr. Reed.
The 5th discrepancy is a CR 58 which is a Hearing Setting on Motion for
Summary Judgment set for May 6, 2014. It is dated March 5, 2014, from Mary
Appellant's Reply Brief - Mary Lou Petty Page 4
Monkress and address to Mr. Reed and a copy to me. There is no clerk district
court stamp on it showing it was filed at what time and what date. However there
is a large stamp showing it is a copy.
Another discrepancy is CR 59 which is March 4, 2014. It is from Mary
Monkress and address to Mr. Reed. It has hand written Mr. Reed fax number,
Cynthia number and Ms. Petty home phone number on it. It was filed at 3PM on
March 6th. What was the significance of this? Was a faxed sentto Mr. Reed? If
so, then what? It is another item that isn't listed in the Index.
The seventh discrepancy is identified as item 17 of the CR 60 - 62, Notice
of Hearing from Mr. Reed to the court coordinator. CR 60 is a fax cover sheet that
there are 4 pages including this cover sheet. The clerk's stamp shows it was
received on March 11, 2014 at 3:50PM. CR 61 is the Notice of Hearing that he
sent to Ms. Petty and CR 62 was the cc: via fax to Mary - the court coordinator. A
four page document (including the cover sheet) would be CR 60-63.
However, CR 63 is listed in the Index and another Notice of Hearing. It is
actually another fax cover sheet, showing 4 pages (including this page). It is
identical to the CR 60 cover sheet but there is no time of receipt indicated. Was
there a 4th page ofthis document that did not get filed inthe record? If so what
was it?
Appellant's Reply Brief- Mary Lou Petty Page 5
Equally as puzzling is CR 64. It is actually a Notice of hearing letter sentto
Mr. Reed with a copy to Ms. Petty. This letter is from the district court coordinator
signed on March 5, 2014 but it was not filed with the district clerk until 3:30 or
maybe 3:50PM on March 11, 2014. What is interesting with this document is that
it is the same letter as CR 58 which was stamped as a COPY without any clerk's
filing on it. The CR 58 is a clear image where as the CR 64 is a reproduced copy
and may be of a different font than the CR 58 which is supposed to be the copy.
The final discrepancy with the clerk's record is CR 65, the Defendant's
Motion for Trial by Jury, filed in the clerk's record on April 2, 2014 at 9:58. I was
told by the lady that took the motion that I needed a page for thejudge to sign. Ms.
Petty told her she would take the prepare one and take it in the next day, which she
did. It is not in the record. What happened to it? Why isn't it in the record?
Another discrepancy that isn't concerning the clerk's record is actually
Santander's Summary Judgment. It was signed by the Judge Presiding on May 6,
2014. However, the actual Summary Judgment does not provide any reference as
to what grounds of TRAC 166a it was filed under.
Appellant's Reply Brief- Mary Lou Petty Page 6
ARUGMENTS
In the Appellee's Brief (will be referred to as AB) Statement of Facts
section, (AB 10), Mr. Reed discusses Ms. Petty Motion for Continuance (CR 56)
and her Motion for Dismissal (CR 55). Both of these motions were written in a
letter format on February 26, 2014 and mailed on that date. On March 3, 2014, she
called to see the status of these requests. The district clerk had not received them
and it was determined that it was because "2nd Floor Drawer G" was not included
as part of the mailing address. So Ms. Petty faxed a copy of these 2 motion letters.
Ms. Petty submitted a "dismissal" motion because Mr. Tobin never
identified himself as an attorney and passed himself off as an employee of
Santander. Even though she failed to set the motion for a hearing, it did happen
and the Appellant told him everything about the situation because he claimed he
would resolve the issue. This put her at a great disadvantage.
The district court did hear Ms. Petty's letter motion for a continuance (CR
56 and RR 3) and granted a 60 day continuance to give her the opportunity to try to
get an attorney. She did diligently try to obtain one but financially did not have the
financial means to pay the retainer fee, unable to get a loan and income was above
the level to get legal aid/assistance.
Appellant's Reply Brief- Mary Lou Petty Page 7
The significant of receiving the Report's Record is because of a few
statements made by the judge in reference to the summary judgment that is
beneficial to Ms. Petty. The following is taken from the (RR 3):
THE COURT: If you want a hearing on it - - if either one of y'all
want a hearing on it, you will need to request it, or otherwise I will
take it my submission. And, Ms. Petty, that means that I willjust read
the motion and read the response, if there is one, and rule on it. But if
either one of y'all actually want a hearing just let my Court
Coordinator know and we will give you a hearing on it.
The following statements are taken from the (RR 4):
THE COURT: No. She is standing here right now. She will do it.
She will take care of it, give y'all notice. And like I said, if you
actually want a hearing on it you will have to request that.
THE COURT: Otherwise, I will take it by submission.
THE COURT: Set is sometime and given them notice and tell them
in your notice it will be by submission unless they want a hearing in
which case they will have to request it.
Take notice that the Hearing Setting on Motion for Summary Judgment set
for May 6, 2014 @ 10 a.m. letter from Mary Monkress, the Court Coordinator,
dated March 5, 2014. It states: "The above-referenced case is set for hearing on
Plaintiffs Motion for Summary Judgment by Submission in the indicated court as
follows:" Notice this was not in accordance with the Judge's instructions. The
statement was supposed to be:
Appellant's Reply Brief - Mary Lou Petty Page 8
The above-referenced case is set for hearing on Plaintiffs Motion for
Summary Judgment by Submission unless they want a hearing in
which case they will have to request it.
Also the Notice of Hearing letter that Mr. Reed sent to Ms. Petty stated that
the Plaintiffs Motion for Summary Judgment has been reset for a hearing by
submission on. He also left out the phase unless they want a hearing in which case
they will have to request it. By this statement being left off, it changes the
situation.
The statement made by the Judge in the Motion for Continuance (RR 3) he
informs Ms. Petty that taking it by submission means that he would just read the
motion and read the response, if there is one, and rule on it. Then he continued on
with the statementthat if either one of y'all want actually want a hearingjust let
the court coordinator know and we will give you a hearing on it. To the Appellant
that meant she could do the summaryjudgment or she could have a hearing on it.
It was like you can do it this way or this other way.
Since Ms. Petty wasn't able to obtain legal representative, she thought it
would be easier to have a hearing. She thought she didn't have to respond to the
summary judgment since she requested a trial by jury. She did check with Mary
Monkress on a few occasions to verify if a trial by jury date had been set. Ms.
Petty also notified her witnesses that she needed to get affidavits from them to
process to the court prior to a court date. Mary Monkress assured Ms. Petty that
Appellant's Reply Brief - Mary Lou Petty Page 9
the trial by jury date would be set as soon as Mr. Reed replied to her counter
petition. That did not happen.
Mr. Petty was preparing to bring in Mr. Price into the law suit under TRCP
38: Third Party Practice. After all he was the general manager at the dealership
when she purchased the vehicle. He is the one that is liable to the plaintiffs claims
against her.
Mr. Reed also stated that pleadings are not competent evidence or proof of
facts that created a genuine issue of material facts thereby precluding summary
judgment. As a general rule, pleadings are not summary-judgment evidence. But
in this case, the Judge had stated that if either one of them wanted a hearing just
request it and we (the court) will give you a hearing on it.
Mr. Reed claimed (AB 19 - 21):
B. There is no basis to reverse the trial court's summary judgment
simply because the court decided the Motion upon submission without
an oral hearing.
In accordance with what the judge said not just once, but repeatedly during
the Motion for Continuance hearing that she could have a hearing. She still
believes that she is entitled to an oral hearing or a jury trial. Mr. Reed continued
on by stating the record shows that Ms. Petty was informed that court would be
ruling Santander's Motion by submission (CR 58-61). As already stated, the
Judge's words were "tell them in your notice it will be by submission unless they
Appellant's Reply Brief- Mary Lou Petty Page 10
want a hearing in which case they will have to request it. Therefore the trial court
did err in ruling on Santander's motion by submission.
Also the Summary Judgment the Judge signed does not provide any TRAC
166a reference^ as to what grounds it was filed under.
Mr. Reed claimed (AB 22)
D. Petty request for a jury trial does not prevent the trial court from
rendering a summary judgment and does not violate her rights under
the Texas Constitution.
Ms. Petty feels that her rights to a trial byjury were violated even through
those rights are not an absolute. Just the statements made by the Judge in the
Motion for Continuance alone should be enough to grant her the trial by jury she
requested. In the record there is a post it on her motion for trial by jury (CR 65)
stating not to set at this time and something about the counter claim against the
finance co. The court coordinator told Ms. Petty the trial by jury date would be set
as soon as she received the counter claim response back from Mr. Reed. He claims
that no disputed material fact issues to be submit to a jury. However, since a trial
byjury date had not been set, the affidavits had not been submitted to the court yet.
The trial court did err and violated Ms. Petty's rights to a trial by jury. (Tex
Constitution Art 1 Sec 15 & Art V Sec 10)
Appellant's Reply Brief- Mary Lou Petty Page 11
-.«
CONCLUSION
This is not a straight forward summary judgment case. There were several
miscommunications, mistakes and discrepancies by all parties. The Appellant had
no choice than to defend herself. She prays to God that the 12th Court ofAppeal
shows her mercy and give her a chance to prove her innocence and allow her the
opportunity to bring the third party into this suit by remanding this case back to the
trial court so she can be given a trial by jury.
Respectfully Submitted,
Mary/tjou Petty //"""
Pro Se7 (/
onegentledove(S>peoplepc.com
744 Elizabeth DR
BullardTX 75757
(903) 825-7222
Appellant's Reply Brief- Mary Lou Petty Page 12
CERTIFICATE OF COMPLIANCE WITH Rule 9.4(e), (i)
This brief complies with the type-volume limitation of Texas Rule of Appellate
Procedure 9.4 because according to the Microsoft Word count function it contains
3,181 words.
This brief complies with the typeface requirement of Texas Rule of Appellate
Procedure 9.4(e) because it used the Times New Roman 14 pointtext and Times
New Roman 12 point font in footnotes.
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document will be delivered
by first class mail and certify mail, return receipt request on March 27, 2114
Kendal B. Reed
Anderson Tobin, PLLC
13355 Noel Road, Suite 1900
Dallas TX 75240
Attorney for Appellee
kreed(o>andersontobin.com
(972)789-1160
(972) 789-1606 (fax)
Mary Lo^f Petty
ProSe
Appellant's Reply Brief- Mary Lou Petty Page 13